Blackledge v. Nelson, 16 N.C. 418, 1 Dev. Eq. 418 (1830)

June 1830 · Supreme Court of North Carolina

16 N.C. 418, 1 Dev. Eq. 418

William S. Blackledge et al. v. Jordan Nelson et al.

From Pitt.

Upon a bill to foreclose or redeem a mortgage, its existence being admitted, a reference for an account of the amount due upon it is an order of course. Questions respecting that amount properly belong to the account, and are only heard upon exceptions to the report.

This was a bill filed to foreclose a mortgage, which the Defendant, Nelson, gave to the Plaintiffs to seour the sumí of §3,000 — the purchase money of the mortgaged premises. Payment of the purchase money was originally made by an assignment of bonds, which the Defendant guarantied, and the mortgage was given to secure that guarantee.

The decree was resisted upon two grounds.

1. That the title to a part of the land had turned out to be bad, and that the Plaintiffs had, by the agreement for the sale, bound themselves to a general warranty j but in executing the deed, had imposed upon the purchaser by a clause of special warranty only.

2. That the bonds were good when they were passed to the Plaintiffs, and had been lost by the negligence of Che mortgagees, or their indulgence to the debtors.

Upon the first point, no evidence was filed by the Defendants. But the Plaintiffs proved, by the deposition of IFilliam Blackledge, that the deed was in strict conformity to the agreement for a purchase. Upo» the second point, evidence was filed by both parties, but at present it Is not necessary to state it.

The case was argued by Hogg, for the Plaintiffs, and uy Gaston, for the Defendants,

Ruffen, Judge.

— The Court does not decide the seCond point in this stage of the case. Upon a bill to redeem or foreclose, when the mortgage is established, un-leas the parties agree to a decree upon the answer, it is the established law of the Court, that a reference to the Master, to ascertain what is due on the foot o? the mortgage, is of course, upon the motion of either party. The Court therefore does not enter upon the question of t!w solvency of the obligors in the bonds transferred j or of ihe laches of the Plaintiffs. Those matters will come up, when the report comes in. They properly belong to the accounts to be taken | and it might be a surprize to both parties to enter into them now, as they may not luive. prepared their testimony to those points, expecting to offer it before the Master. The usual reference is there. fr*’-e >ird“v<-d,

Per Curiam.

— Declare that the conveyance made to the Defendant, Nelson, with a covenant, of special warranty only, conforms to the agreement of the parties, and decree that the Plaintiffs are barred of relief, by reason. of any defect of title in a part of the land conveyed by them to Nelson, if such defect exists, and direct an account of what is due the Plaintiffs for principal and interest on the mortgage, including such costs as they have necessarily incurred, in prosecuting suits on the bonds assigned by the Defendant, Nelson, to-them.